Defence Services Pension Continuation Act (R.S.C. 1970, c. D-3)

Provision for Officers’ Survivors and Children

Marginal note:Pension to survivors and compassionate allowance to children

• 25 (1) Subject to the provisions hereinafter contained, the Minister may, as to him or her seems fit, grant a pension to the survivor and a compassionate allowance to each of the children of any officer who, at the time of death being on full pay, dies after a period at which a pension might be granted him, or who was, at the time of his death, in receipt of a pension.

• Marginal note:If two survivors

  (2) If the Minister grants a pension to two survivors, the total amount of the pension shall be apportioned between the two survivors in accordance with subsection 32(3).

Marginal note:Where not granted

26 Such pension or compassionate allowance shall not be granted

• (a) and (b) [Repealed, 1992, c. 46, s. 83]

• (c) if the deceased officer had been excused, at his own request, from serving, though capable of service, when called upon and required to serve, after having been officially warned that his family would thereby lose all claims to pension and compassionate allowance;

• (d) if the survivor began to cohabit with the officer in a relationship of a conjugal nature, or married, the officer after the officer retired;

• (e) if, at the time the survivor began to cohabit with the officer in a relationship of a conjugal nature, or married the officer, the officer had attained the age of sixty years; or

• (f) [Repealed, 1992, c. 46, s. 83]

• (g) if the officer died within one year after his marriage, unless he was manifestly in good health at the time of his marriage, and his death was caused by disease or injury not due to causes within his own control, and the Minister is satisfied that there are no other objections to the granting of the pension or compassionate allowance.

Marginal note:Election for officers

• 26.1 (1) If the person to whom an officer is married or with whom the officer is cohabiting in a relationship of a conjugal nature, having so cohabited for a period of at least one year, could not be granted, by reason of paragraph 26(d) or (e), a pension under section 25 in the event of the officer’s death, the officer may elect, in accordance with the regulations, to reduce the amount of the officer’s pension in order that a pension could be granted to the person under subsection (2).

• Marginal note:Payment

  (2) The Minister shall grant a pension to the person referred to in subsection (1) in an amount determined in accordance with the election and the regulations, if

  • (a) the person was married to the officer at the time of the officer’s death, or was cohabiting with the officer in a relationship of a conjugal nature for a period of at least one year immediately before the officer’s death; and

  • (b) the election is not revoked or deemed to have been revoked.

• Marginal note:No entitlement

  (3) A person who is entitled to receive a pension under section 32 after the officer’s death is not entitled to a pension under subsection (2) in respect of that officer.

• Marginal note:Regulations

  (4) The Governor in Council may make regulations respecting

  • (a) the time, manner and circumstances in which an election may be made, revoked or deemed to have been revoked;

  • (b) the reduction to be made in the amount of an officer’s pension when an election is made;

  • (c) the amount of the pension granted under subsection (2); and

  • (d) any other matter that the Governor in Council considers necessary for carrying out the purposes and provisions of this section.

Marginal note:Pension one-half of officer’s pension

27 The pension of a person who was married to an officer shall, if the officer was at the time of his death on full pay, be an amount equal to one-half of the pension to which he would have been entitled if he had been retired compulsorily immediately before his death, or, if at the time of his death he had been pensioned, an amount equal to one-half of the pension.

Marginal note:Compassionate allowance

• 28 (1) The compassionate allowance to a child shall be as follows: the child of a colonel or lieutenant-colonel, eighty dollars; of a major, seventy dollars; of a captain, sixty-five dollars; of a lieutenant or second lieutenant, fifty dollars; of a warrant officer, twenty-five dollars.

• Marginal note:If no pension to survivor

  (2) If no pension is payable to a survivor under this Act, the allowance shall be double that fixed by subsection (1).

Marginal note:Amount to family limited

29 The total amount paid to the survivor and children of an officer during any year shall not exceed the amount of the pension that the officer was in receipt of, or to which he would have been entitled, as the case may be.

• 30 (1) [Repealed, 1992, c. 46, s. 85]

• (2) [Repealed, 1989, c. 6, s. 12]

• (3) [Repealed, 1992, c. 46, s. 85]

Marginal note:Officers’ children

31 The compassionate allowance to officers’ children shall not be granted to a child over the age of twenty-one, and the allowance shall cease when the child reaches the age of twenty-one.

Marginal note:Person considered to be the survivor

• 32 (1) For the purposes of this Act, when a person establishes that he or she was cohabiting in a relationship of a conjugal nature with an officer or former officer for at least one year immediately before the death of the officer or former officer, the person is considered to be the survivor of the officer or former officer.

• Marginal note:Person considered to be married

  (2) For the purposes of this Act, when an officer or former officer dies and, at the time of death, the officer or former officer was married to a person with whom he or she had been cohabiting in a relationship of a conjugal nature for a period immediately before the marriage, that person is considered to have become married to the officer or former officer on the day established as being the day on which the relationship began.

• Marginal note:Apportionment of pension when two survivors

  (3) When a pension is payable to a survivor and there are two survivors of the officer or former officer, the total amount of the annual allowance shall, subject to subsection (4), be apportioned so that

  • (a) the survivor referred to in paragraph (a) of the definition “survivor” in subsection 2(1) is entitled to receive the proportion of the pension that the total of the number of years that he or she cohabited with the officer or former officer while married to the officer or former officer and the number of years that he or she cohabited with the officer or former officer in a relationship of a conjugal nature bears to the total number of years that the officer or former officer so cohabited with the survivors; and

  • (b) the survivor referred to in paragraph (b) of that definition is entitled to receive the proportion of the pension that the number of years that he or she cohabited with the officer or former officer in a relationship of a conjugal nature bears to the total number of years that the officer or former officer cohabited with the survivors, either while married or while in a relationship of a conjugal nature.

• Marginal note:Exception

  (4) If one of the two survivors is found criminally responsible for the death of the officer or former officer or if, when the officer or former officer dies, it is established to the satisfaction of the Minister that one of the survivors cannot be found, the other survivor shall receive the first survivor’s portion, in addition to his or her own portion.

• Marginal note:Death of one of the survivors after apportionment

  (5) When one of the two survivors dies after apportionment, the portion of the pension that would have been payable to the survivor who died shall be paid to the remaining survivor in addition to his or her own portion.

Marginal note:Pension to officer or militiaman of His Majesty’s Army Reserve who enlisted in Permanent Force

• 33 (1) An officer or militiaman who, while belonging to His Majesty’s Army Reserve, enlisted in the Permanent Force and who on the calling out of the Army Reserve upon the commencement of the war between Great Britain and Germany in August 1914, was under liability as a member of such Army Reserve to rejoin his corps, but who, under arrangements made with His Majesty’s Government, was not discharged from the Force subsequent to the calling out of the Army Reserve shall, if he so elects as provided in subsection (2) be granted a pension equal to that which he would have received from British Funds had he rejoined his corps upon the said calling out of the Army Reserve, and served in His Majesty’s Regular Army in ranks corresponding to those he held from time to time in the Canadian Military Forces until the date he was struck off the strength of the Canadian Expeditionary Force, such pension to commence as of and from the date following that on which such officer or militiaman was struck off the strength of the Canadian Expeditionary Force.

• Marginal note:Election

  (2) An officer or militiaman to whom subsection (1) applies, shall be required to elect whether he shall be granted the pension therein mentioned, and if he so elects his service from the date of his enlistment in the Force while belonging to the said Army Reserve until the date he was struck off the strength of the Canadian Expeditionary Force, shall not be included in the term of service for any other pension or a gratuity under this Act; any gratuity or pension under this Act granted to an officer or militiaman prior to his so electing shall be re-computed as of the date on which the pension mentioned in subsection (1) commenced by excluding from the term of service on which such gratuity or pension was based the service first mentioned in this subsection; if by the exclusion of such service the officer or militiaman has not sufficient service to entitle him to a gratuity or pension, or the gratuity or pension to which he would be entitled on such re-computation is less than the gratuity or pension heretofore granted, there will be recovered from the pension payable to such officer or militiaman, under subsection (1), all payments of gratuity and pension or overpayments thereof which have resulted; but if an officer who has already been granted a pension under this Act elects as aforesaid, and by the exclusion of the service mentioned he becomes ineligible for the grant of such pension, but becomes eligible for the payment of a gratuity under this Act, then such gratuity shall be applied toward the recovery of the payments of pension already made, and any balance of such payments not met by the application of such gratuity shall be recovered from the pension payable to such officer under subsection (1).

Marginal note:Provision of 1919, c. 61, to apply to certain cases

34 The provisions of chapter 61 of the Statutes of Canada, 1919, being An Act to amend the Militia Pension Act, which came into force on the 7th day of July 1919, apply to those officers and militiamen who by reason of wounds or disabilities received or suffered while on active service during the war between Great Britain and Germany, which commenced on the 4th day of August 1914, were retired or discharged from the force prior to the said 7th day of July 1919, and an officer who, by reason of such retirement before a period at which a pension might have been granted him, received a gratuity and who will by virtue of this section, become eligible for the grant of a pension under this Act, shall be required to elect whether he shall be granted such pension and if he so elects he shall repay such gratuity in such manner as the Governor in Council may determine.

Marginal note:Order to pay pension to another

35 Where the Minister is of the opinion that the pensioner is incapable of expending or is not expending the pension in a proper manner, the Minister may order that the pension be paid to such person as the Minister may appoint, in order that the money may be expended by that person, for the benefit of the pensioner and the members of the pensioner’s family, and the expenses connected with such payment, if any, shall be paid by the Minister.

Marginal note:Diversion of payments to satisfy financial support order

• 35.1 (1) When any court in Canada of competent jurisdiction has made an order requiring a pensioner to pay financial support, amounts payable to the pensioner under this Act are subject to being diverted to the person named in the order in accordance with Part II of the Garnishment, Attachment and Pension Diversion Act.

• Marginal note:Payment deemed to be to pensioner

  (2) For the purposes of this Act, any payment made pursuant to subsection (1) shall be deemed to have been made to the pensioner in respect of whom the payment was made.

• (3) [Repealed, 2000, c. 12, s. 98]